Stewart v. Cross

63 So. 956, 184 Ala. 166, 1913 Ala. LEXIS 612

• Court: Supreme Court of Alabama
• Decided: November 27, 1913
• Status: Published

Opinion

McCLELLAN, J.

— Statutory ejectment by appellant against appellee. Being at the time largely indebted, Benjamin J. Tarver, on 14th day of October, 1864, executed to N. H. R. Dawson a deed of trust, of which the following (omitting the signature, attestation, and acknowledgment) is a copy: “Know all men by these presents: That, for a good and sufficient consideration, I, Benjamin J. Tarver, of the county of Dallas, and State of Alabama, have granted, bargained, and sold, and by these presents do grant, bargain, sell, and convey unto N. H. R. Dawson, of said county and state, all my property and estate, real and personal, of every description whatsoever, situate in Dallas county, Alabama. To have and to hold the same upon the following trusts and limitations, viz.: That the proceeds of said property is to be applied to the payment of my just debts, now contracted, and then to the support of myself and wife, Eliza M., during our respective lives, and the profits of said estate, after the payment of my said just debts and the support of my said wife, are to be paid to me and enjoyed as I see proper, and I am to continue in possession of said property so long as I appropriate the proceeds or profits to the payment of my existing debts, and the support of my wife; but so soon as I fail to do either, then said Dawson is authorized to take actual possession of the same, and to use and hold the same, subject to' the trusts aucl limitations of this conveyance, and upon the further trusts and limitations at my death, to convey to my widow and my children then living, should I have any, said property and its increase, and profits then in hand, share and share alike, but should I die, leaving no children, but leaving a widow, then said Dawson is to convey one-half of said property to my widow, and one-half to my niece, Mary T. Dawson, and if my said niece dies before me, then convey the whole to my widow, and should I leave no widow surviving me, but leave children, then to convey all of said property, its increase and profits, as aforesaid, to my children, share and share alike; but should I die, leaving no widow or children alive, and said Mary T. Dawson having died before me, then to convey the whole of my property, as aforesaid, at my death, to my cousin, Fanny Tipton. No part of said property, except the profits, shall be disposed of by me during my life, and should I do so, then said N. H. R. Dawson shall have the right and power to sue for and recover the same immediately, and thereafter retain possession thereof, and to take possession of all said property at any time that I may dispose of any of it, and should the profits of my property be in sufficient to pay my existing debts, then said N. H. R. Dawson is authorized hereby and empowered to sell any of the property that he may deem best, and apply the proceeds to the payment of said debts, and said N. H. R. Dawson shall be the exclusive judge of the necessity of such a sale, and the balance of my said property shall be subject to the provisions of this conveyance, as hereinbefore set forth.”

Consistent with the condition stipulated in the latter part of the deed of trust, the trustee (Dawson) assumed to exercise the authority conferred on him. On February 15, 1870, the trustee filed a bill in the chancery court of Dallas county (where the trust estate was situate), to which Benjamin J. Tarver and Eliza Tarver, his wife, James W. Lapsley, Sarah J. Clark, Mary T. Dawson, and Caroline M. Haden were made parties defendant. Lapsley and Clark stood in the relation of creditors of Benjamin J. Tarver. Mrs. Haden was the possessor of a life estate in a part of the real estate of the trust estate. Mary T. Dawson, then an infant, daughter of the trustee, held the title to an undivided half interest, with Tarver, in a block of real estate, in the city of Selma; Tarver’s interest being subjected by the deed to the trust thereby created. So far as we need state it at this time, after setting forth the relation of the parties to the trust, or to the property thus subjected to the trust, the bill averred that: “Said Sarah J. Clark claims that on the-- day of-, 1865, the said B. J. Tarver agreed with her in writing to pay her $500 for said debt [previously described in the bill]; but orator says that Tarver had no legal authority to bind or burden the property conveyed in trust to your orator for a larger sum than was actually and legally due at the time of making said deed. Orator is informed, and believes, and so states that James W. Lapsley has, by purchase and transfer from the original creditors, become the owner of the rest of said claims against Tarver. The present amount of said claims or debts to the best of orator’s information is about $6,000. * * * Said B. J. Tarver also held and owned a plantation in Dallas county of about 1,400 acres, which was levied on, under execution, issued on some of the debts described in the schedule marked ‘Exhibit B.’ The sheriff, having said executions in his hands, set apart 800 acres of said plantation for'a homestead, and the residence [residue], say about 590 acres, was sold under said execution, and bought by one P. O. Crimes, * * * who transferred and conveyed the same, together with the residence [residue] of his judgment, to said James W. Lapsley, who now holds the same. Said B. J. Tarver has no means of support for himself and his wife except such as may he derived from said plantation; wherefore, it is desirable to redeem same. There are also' some choses in action belonging to said trust estate; none of them, however, are at present available, and the probable ultimate value of them is small. Full report thereof will be made as your honor may direct.”

In the fourth paragraph of the bill this language occurs : “Orator further states that it is necessary'to sell some portion of said trust estate in order to discharge said debts, and that the half interest in the lot of land in Selma, first described, in section 3 is the only piece of property that would sell for enough to pay said debts, and at the same time it Avill be most beneficial to dispose of that rather than any other part of said estate, because it brings in no revenue, being most vacant, and Mrs. C. M. Haden, the mother of said B. J. Tarver, has consented in writing to release her life interest in so much of said lot as may be necessary to sell in order to pay said debts.”

In the -fifth paragraph of the bill it is' set forth that: “Mary T. Dawson * * is the Mary Dawson referred to in said deed o-f trust. And for a sale of the said B. J. Tarver’s half interest [in the block mentioned before], it will be necessary to have the lot divided into two small building lots of suitable size, and that the same should then be divided equally between your orator, as the owner of said B. J. Tarver’s half interest, and the said Mary T. Dawson. And that so much of said lot as may be allotted to orator, as may be necessary, should be sold as your honor may direct.”

In the sixth paragraph of the bill this occurs: “Your orator prays your honor to take jurisdiction of the execution of the trust of said deed, and of the settlement of the same, and that your honor will make the necessary orders and decrees for the division of said lot between orator and the said Mary T. Dawson, and for the sale of so much of that which is allotted to orator as may be needed to pay said debts and the costs and expenses of the trust, and that your honor will order publication, by advertisement, to be made requiring all persons claiming to be creditors of said Tarver, on the 14th October, T864, at the date of said deed, to present and make pi’oof of their claixns before the register of this court.”

There was prayer for process and for general relief. The deed of trust was exhibited (in copy) with the bill.

The court of chancery took jurisdiction in the premises of the execution of the trusts of the deed, appointed commissioners to divide the Selma property as prayed in the bill, and effected the partition between the trustee and Mary T. Dawson, directed the ascertainment of the debts against Tarver at the date of the deed of trust, with appropriate provision for the accomplishment of that purpose, ordered the sale by the trustee of so much of the lot allotted to the trustee as was of a value sufficient to pay the expenses of the trust and the debts as ascertained and reported by the register, appropriate provision having been made for the terms, place, and notice of the sale so directed, confirmed the report of the sale which was had May 9, 1870, ordered an accounting before the register by the trustee, and the ascertainxxxent of the correctness of the claims held by Lapsley; and in October, 1870, pursuant to a petition by the trustee alleging that the part of the lots so sold by the trustee did not produce sufficient proceeds to pay all the debts, the court ordered the trustee to sell two lots which were then yielding no income, to pay the remaining debts. This sale was effected, reported, and confirmed. The accounting made by the trustee was regularly filed, and was passed and allowed by the court, and the cause was passed from the docket, subject to be reinstated in the event of future need.

.The plaintiff (appellant) is a daughter of Benjamin J. Tarver. Her mother, the wife of Tarver, died prior to B. J. Tarver’s death. Tarver died in September, 1910. The plaintiff bases her asserted right to recovery against this defendant, who claims through mesne conveyances leading back to the sale of the Selma lots by the trustee in 1870, upon the reversion or remainder created by the deed of trust to Dawson..

The court gave the general affirmative charge for the defendant.

There can be no doubt of the entire validity of the deed of trust from Tarver to Dawson. Dawson took thereunder the legal title to the property affected by that instrument.

There can be no doubt that the conveyance made by Dawson to the purchasers of the lots at the sales following the trustee’s exhibition of his bill to and in the chancery court of Dallas county were conveyances of the trustee, as such, in his representative capacity, and not conveyances to Dawson individually. — Warrior River Co. v. Ala. State Land Co., 154 Ala. 135, 140, 141, 45 South. 53.

Natural right in this contest, which the circumstances disclosed by the record so plainly manifests to be against the plaintiff, must be laid entirely out of view in determining this appeal; yet in so doing it may be remarked, in passing, that courts composed of persons not oblivious to the human instincts or impulses that would justly foreshadow the righteous action or judgment of the rest of human kind are never eager to promote, though sometimes compelled thereunto by inexorable rules of law, the effectuation of manifest injustice. The fact that the proceeds of these sales made upwards of 40 years ago extinguished debts that were a charge upon the property then sold, and probably contributed to the redemption the bill of the trustee contemplated — potent as the stated fact might and should be elsewhere — cannot be a factor in the solution of this appeal.

The trusts as and when created by the deed to Dawson were active, even projecting to a point of time subsequent to the death of B. J. Tarver, for, taking the event of his death and the status at that time as the subject of the trust deed’s effect and operation, the plain active duty of the repository of the legal title (assuming there had been no exercise of the power of sale vested in the trustee), viz., the trustee, was to convey to the plaintiff as the child of the grantor, Tarver. If it were yielded to plaintiff’s contention that no valid, exercise of the power of sale had ever been effected, it is manifest that the plaintiff could not prevail in this action of ejectment, since, under the provisions of the deed of trust, she was, when this action was brought, without the title necessary to maintain it. The affirmative charge is to be justified upon that theory.

Again, since the conveyance under which, in orderly succession, defendant claims was executed and delivered by the trustee as such, in pursuance of a purpose to execute one of trust created by the instrument to Dawson, the applicable doctrine, fully stated in Robinson v. Pierce, 118 Ala. 273, 291-295, 24 South. 984, 45 L. R. A. 66, 72 Am. St. Rep. 160, is that the grantees took legal title reposed in the trustee, for relief against which (if to relief she was or is entitled) the cestuis que trust can alone resort to a court of equity. On this account the general affirmative charge is to be justified.

It is earnestly and at great length insisted in brief for appellant that the conveyance through which defedant derives her right, in succession, to the real estate in question, made by the trustee to the purchaser at the sale had in 1870, is void, for the reason that the power of sale and the discretion to sell were not exercised by the trustee upon whom, exclusively, it was conferred by the trust deed of 1864. In our opinion this contention is entirely untenable.

Reference to the trust instrument, quoted before, discloses that no particular method for effectuating the sale, if determined by the trustee to be necessary, was provided therein. ■ The power imposed and reposed (the trust being accepted by the trustee) in -Dawson as trustee was to determine the necessity to sell property to effect the primary purpose of paying Tarver’s debts owed October 14, 1864, and, having done this, to sell property for that purpose. In both the original bill (paragraph 4, quoted ante) and in the supplemental petition filed October 11, 1870, to sell two additional lots, as well as otherwise in the progress of that cause, it was unmistakably shown that the trustee determined the then existence of the necessity the ascertainment of which the trust deed had committed to his decision. That cannot be the subject of dispute on the record before us. The single remaining inquiry, suggested by the insistence for the plaintiff, is, Did the trustee exercise the power, personally conferred on him to sell to meet the necessity he had theretofore determined existed?

A negative response to this question is mainly, if not entirely, rested upon prefatory expressions in the deed to the purchasers, to the effect that the sales were ordered by, reported to, and confirmed by the chancery court of Dallas in the cause styled “N. H. R. Dawson, trustee v. B. J. Tarver, et al.” The particular conveyances of Dawson to Callen and of Dawson to Graham expressly purport to transmit to the grantees the title of the “party of the first part,” who was affirmed in the conveyance to be “N. H. R. Dawson, as trustee.” In McRea v. McDonald, 57 Ala. 123, 128, this court pronounced valid a deed, which, to be valid, must have been the exercise of a power, personally reposed, to sell real estate, notwithstanding the probate decree under which the sale was effected was declared a nullity. The court there approvingly quoted this from! Story: “It is not necessary that the intention to execute a power shall appear by express terms or recitals in the instrument. It is sufficient that it shall appear by words, acts, or deeds, demonstrating the intention.” In Matthews v. McDade, 72 Ala. 377, 387, the act of selling was referred to the power conferred by the deed of trust, and not to the power afforded and conferred by the decree of sale entered by the probate court. Whether the power conferred by the deed of trust was executed was made to turn on the inquiry whether the repository of the power — from both sources, the deed and the court’s decree — intended the execution of the former power, or intended by his act to merely obey the mandate of the probate court decree, and on this inquiry all the circumstances Were held to be due consideration. It was there said: “We take the rule as settled that while, in the execution of the power, the donee or trustee of the power must not leave it uncertain whether or not the act done is in execution of the power, a direct reference to the power is never necessary in order to make the act referable to it.” It was also there said: “It must be apparent that the transaction in question is not fairly or reasonably susceptible of any other interpretation than as indicating an intention to execute the power, and this intention is to be collected from all the circumstances.” Taking due account of the fact, in that case, that to refer the act to the decree, rather than to the deed, would destroy the conveyance to the grantee from the executor, it was there observed: “In such cases, the inclination of the court is always to refer the act to the valid poioer, so as to afford some field for its operation, * * * if this can be done consistently with other prevailing rules of construction.” [Italics supplied.] The pertinent doctrine of this decision is not to be gainsaid. It is accepted.

With respect to the poioer conferred by the deed, what was the trustee’s intention, as disclosed by “all the circumstances shown by this record,” in the sale of the property conveyed by purchasers at the sales? It is to be borne in mind that the deed of trust Avas made a part of the bill filed by the trustee, and, in consequence, the provisions of the deed of trust were then and are now to be read in connection with the terms of the bill so filed. It is to be further borne in mind that the bill as filed possessed manifest equity, promotive of the proper, conservative, and protective administration of the trust under the provisions of the deed of trust. It sought equity’s compulsion and surveillance in respect of the ascertainment of the indebtedness owed by Tarver, as was necessary to effect a leading trust purpose. It invoked equity’s jurisdiction to partition the Selma block, between himself, as owner for the purpose of the trust, and his daughter, who, besides being a joint owner with the trustee, Avas also a contingent beneficiary under the trust instrument. It invoked, as any trustee might, under the circumstances, have done, the direction of the court in the fulfillment of the obligations and duties Ms acceptance of the trust imposed upon him, not inconsistent with power and duties established by the trust instrument. In connection with the jurisdiction so invoked, the trustee asked and received an order for the sale of the property to pay debts, so ascertained, under the processes of the court — a purpose completely consistent with the duty imposed by the trust instrument. In each instance of sale here involved, he reported his action to the court, coupled with the affirmative statement that the prices bid were fair, and that, in the trustee’s opinion, the sales should be confirmed. It" is to be further borne in mind that the grantor did not, in the trust instrument, undertake to suspend, in respect of the trusts he established, equity’s general and inherent jurisdiction over the administration of trusts under and in accordance with the provisions of the instrument creating the trusts. Indeed, in the decree assuming the jurisdiction invoked by the bill, the court thus, in part, pronounced: “And that this court take jurisdiction of the execution of the trusts of the deed of trust, exhibited to the bill, and of the settlement of the same.”

The power, conferred on the trustee, to determine the necessity to sell and the poioer, so conferred, to sell involved the exercise of judgment on the part of the trustee. In the first matter of the determination, by the trustee, of the necessity to sell, to effectuate a trust purpose, the trustee unmistakably so adjudged. That he assumed (to concede, for the occasion only, the utmost against the validity of his acts) by his bill an attitude of submitting the matter of necessity vel non to- the judgment of the Dallas chancery court cannot be material or controlling, since that court took the identical view the trustee affirmed in his bill invoking its judgment. The effect of what the court did in that respect was simply to confirm the trustee’s judgment that the-requisite necessity to sell existed. If, in the abundance-of caution about a matter in which the trustee’s judgment was made exclusive and final by the charter of his powers and authority, the trustee invoked the judgment of the court in confirmation of what he had determined, and the court approved his judgment, we can- • not conceive how a question of delegation of the trustee’s power could arise, for the trustee has unquestionably exercised 7vis judgment which, though confirmed, by the court, was none the less the trustee’s determination in the premises. If the question had been presented in a way that did not comprehend the affirmation of" the trustee’s judgment of the existence of the necessity' to sell to pay debts, and the court had attempted to ad- ■ judge the necessity, without the trustee’s affirmation thereof, a very different question would be litigable.

Now, as to the act of selling. Aside from the poioerto determine the necessity vel non to sell, the trustee’s authorization, in this particular, was to sell. That -. the trustee did, in fact, actually sell and, in his fiduci- ■ ary capacity, actually convey is obvious. To which— the power in the deed of trust or the court’s decree— must, under the circumstances shown, his acts in selling be attributed, both being perfectly consistent with the object of the trust in respect of the payment of debts?

In both conveyances by the trustee (to Callen and Graham), the subject thereof was the title vested in the ■ trastee. The deeds so affirm, saying: “It is expressly contracted [“understood,” in one] that said party of" the first part [the trustee] only conveys as trustee, and makes no warranty of title.” The sale was of the trustee’s title, not that of Tarver. Thus the conveyances-necessarily refer to the trust instrument which, alone,,. conferred the trust capacity upon Dawson, and in this capacity, only, did he undertake to convey. In the premises of the deed to Graham, particular reference is made to the trust deed, “for certain purposes therein named.” Both conveyances (to Callen and. to Graham) recited, in substance, that the sale was had and conveyancce made by or under the order or decree of the court of chancery. This recital is .manifestly true, for such was the order and decree of the court, invited by the trustee’s bill to that end. The deed of trust prescribed no method of sale — no notice, no term, no particular part or all of the trust estate. In this respect the deed empowered the trustee to sell, leaving the method to his judgment, or selection. Upon his unequivocal, particular initiative “and invitation the court of chancery laid out the subject of the sale — the trustee’s half of the Selma block — and prescribed the terms, place, and notice of sale. The trustee, not an agent solely commissioned by the court, sold in conformity with the directions the trustee have invited the court to give. The trustee reported to the court, affirming that the sales should be confirmed. There is nothing in the process followed by this trustee that manifested a surrender of the power to sell conferred on him by the deed of trust. It is not to be presumed that, because the court ordered what he besought it to order, and confirmed what he did, upon his assertion of- his judgment that what he did should be confirmed, the trustee did not exercise his judgment upon the matter the deed of trust committed to his judgment. The method whereby or whereunder he would sell was open to- his selection, to- his approval, and this he effected by invoking and observing the processes which equity most usually pursues . The fact that he invoked and received the chancery court’s confirmation of what he, as trustee, formally affirmed as his judgment in the premises, and then awaited upon its approval of the sales, did not, in our opinion, refute the fact that he, the trustee, in fact sold the property under the poioer brought into life by the deed of' trust. The recital of the conveyances consist with this. action by the trustee, for the order of the court was invited by filings made by the trustee initiating the cause, and these expressed the trustee’s precedent judgment of what should be sold, when separated from joint ownership, and that the sales made by him should be confirmed. So, if it is conceded for the occasion that the-chancery court’s actions and orders in respect to the-sales made to Callen and to Graham were wholly void,. our conclusion is, from all the circumstances shown, that the trustee sold under the power to sell given him. by the deed of trust. If the chancery court’s action had run counter to the conclusions of the trustee, either as. to the necessity to sell, for the trust purpose, or to the positive acts of the trustee in making the sale, and affecting conveyances to the purchasers, there would be-afforded a strong case against the valid exercise of the power bestowed by the trust deed; but, as we interpret the facts and circumstances, the effort (even if assumed to be a nullity) of the court of chancery to promote and . to confirm the trustee’s acts in the premises does not - suffice to establish the fact that the trustee did not intend to exercise the power of sale conferred by the deed . of -trust.

The judgment is affirmed.

Affirmed.

Dowdell, G. J., and Sayre and Somerville, JJ., concur.